This is an action to terminate parentage. The father and mother have a long and difficult history dealing with their children, and the state moved to terminate their parentage. As part of the proceeding, the state sought to introduce evidence of a “marijuana grow operation” photo posted to the mother’s Facebook page. The case worker testified that she sought to admit the photos not because she thought they were the mother’s, but because she:

[had] concerns about this kind of criminal activity being posted right next to pictures of [the] children while [the mother] is on visits at the Boys Town office.

The trial court admitted the photographs but with the following caveat:

[f]or the limited purpose of them being on the Facebook page, I will allow them in, but for no other reason than that, that [sic] they were on the page, not that they were [the mother’s], put on [by the mother] or anyone else. That’s the very nature of Facebook. That would be the only purpose for the Court to look at it.

Finally, the mother was asked during the trial court proceedings about her Facebook account but not specifically about the pictures.

The appeals court says that admission was error. The proponent of evidence bears the buden of authentication, which can take place in a viariety of different ways. However, without any evidence of the provenance of the photographs, the appeals court says that the trial court erred in admitting them. Additionally, the court says that the possible prejudice from admitting the photos outweighed the probative value. The court rejects the trial court’s conclusion that the appearance of the photos on the mother’s Facebook page “speaks to her inability to maintain a safe home.”

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It’s nice to see courts recognize that content, posts, or photographs can appear on someone’s profile, but this does not mean that the page owner necessarily posted it, or even agreed with it. Absent evidence that the mother actually posted the photos, it makes about as much sense to admit them as it does to admit a random photo that’s sourced from the internet. The state (and the trial court) seemed to say that allowing third parties to post these photos is reflective of the fact that the mother associated with these kinds of people and this implicitly reflects on her lack of control over her home life, but the appeals court is not swayed by this. In other words, people can friend a wide range of people on Facebook, and having someone you know post sketchy photos does not mean that your life has strayed from the straight and narrow.

It’s worth contrasting this decision from other decisions that have allowed “contextual authentication” of social media evidence. Here the court requires a more rigorous standard under which the photographs are only admitted if it can be shown that the mother actually posted them (or someone else can testify as to their details).